PRIOR PRINTER'S NO. 37 PRINTER'S NO. 476
No. 27 Session of 1993
INTRODUCED BY LLOYD, TOMLINSON, GEIST, PETRARCA, COY, DeLUCA,
DeWEESE, FEE, HERMAN, PESCI, FAIRCHILD, MUNDY, LAUGHLIN,
CAPPABIANCA, BATTISTO, CESSAR, JOSEPHS, TIGUE, PISTELLA,
FARGO, VANCE AND WILLIAMS, JANUARY 27, 1993
AS REPORTED FROM COMMITTEE ON PROFESSIONAL LICENSURE, HOUSE OF
REPRESENTATIVES, AS AMENDED, MARCH 16, 1993
AN ACT
1 Empowering the General Counsel or his designee to issue
2 subpoenas for certain licensing board activities; providing
3 for hearing examiners in the Bureau of Professional and
4 Occupational Affairs; providing additional powers to the
5 Commissioner of Professional and Occupational Affairs; AND <--
6 further providing for civil penalties and license
7 suspension.; and making repeals. <--
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Definitions.
11 The following words and phrases when used in this act shall
12 have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "DISCIPLINARY MATTER." ANY MATTER SUBJECT TO A LICENSING <--
15 BOARD'S OR COMMISSION'S JURISDICTION IN WHICH THE LICENSING
16 BOARD OR COMMISSION HAS THE AUTHORITY TO REFUSE, SUSPEND, REVOKE
17 OR LIMIT A LICENSE, REGISTRATION, CERTIFICATE, OR PERMIT OR TO
18 IMPOSE A CIVIL PENALTY OR OTHER DISCIPLINE UNDER ANY ACT.
19 "Licensing boards." Those departmental or administrative
1 boards under the Bureau of Professional and Occupational Affairs
2 in the Department of State.
3 "Licensing commissions." Those departmental or
4 administrative commissions under the Bureau of Professional and
5 Occupational Affairs in the Department of State.
6 Section 2. Investigatory subpoena power.
7 The General Counsel or his designee shall have the power and
8 his duty shall be to issue subpoenas upon application of an
9 attorney responsible for representing the Commonwealth in
10 disciplinary matters before a licensing board or commission for
11 the purpose of investigating alleged violations of the
12 disciplinary provisions administered by a licensing board or
13 commission; provided that, if their disclosure is subject to a
14 privilege provided by law, patient or client records may not be
15 subpoenaed without the consent of the patient or client or
16 without order of a court of competent jurisdiction showing that
17 the records are reasonably necessary for the conduct of the
18 investigation. The court may impose such limitation on the scope
19 of the subpoena as may be necessary to prevent unnecessary
20 intrusion into patient or client confidential information. The
21 attorney responsible for representing the Commonwealth in
22 disciplinary matters before a licensing board or commission is
23 authorized to apply to Commonwealth Court to enforce the
24 subpoenas. Nothing in this clause shall be construed to excuse a
25 person from producing documents and records as requested by a
26 licensing board or commission under any other provision of law.
27 Section 3. Hearing examiners.
28 (a) Appointment.--Notwithstanding any other provision of
29 law, the Commissioner of the Bureau of Professional and
30 Occupational Affairs, after consultation with the licensing
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1 boards and commissions, shall appoint such hearing examiners as
2 may be necessary to conduct hearings in disciplinary matters
3 before a licensing board or commission. EACH LICENSING BOARD AND <--
4 COMMISSION SHALL HAVE THE POWER TO DECIDE IF A SPECIFIC
5 DISCIPLINARY MATTER OR TYPE OF DISCIPLINARY MATTER IS TO BE
6 HEARD BY THE LICENSING BOARD OR COMMISSION ITSELF OR BY A
7 HEARING EXAMINER APPOINTED PURSUANT TO THIS SUBSECTION.
8 (b) Regulations.--The Commissioner of Professional and
9 Occupational Affairs, after consultation with the licensing
10 boards and commissions, shall have the power to promulgate
11 regulations setting forth the functions, powers, standards, <--
12 procedures and duties PROCEDURAL RULES to be followed by any <--
13 such hearing examiners appointed to conduct IN THE CONDUCT OF <--
14 hearings in disciplinary matters before a licensing board or
15 commission. ALL PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE <--
16 WITH THE PROVISIONS OF 2 PA.C.S. (RELATING TO ADMINISTRATIVE LAW
17 AND PROCEDURE).
18 (c) Powers.--Such hearing examiners shall have the power to
19 conduct hearings in accordance with applicable statutes, RULES <--
20 and regulations and, to issue subpoenas requiring the attendance <--
21 and testimony of individuals or the production of pertinent
22 records or other papers by persons whom they believe have
23 information relevant to any matters pending before the examiner
24 AND TO ISSUE DECISIONS. <--
25 (d) Time periods.--In all disciplinary matters before a
26 licensing board or commission, hearings shall commence within 90
27 days after the date on which an answer is filed. Any continuance
28 granted prior to the commencement of the hearing shall toll the
29 90-day requirement by the period of the continuance. A decision
30 shall be rendered within 180 days after the record is closed.
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1 The board or commission shall render a final adjudication or
2 decision on any exceptions to the decision of a hearing examiner
3 or any applications for review within 90 days of the filing of
4 such exceptions or applications, provided that a board or
5 commission may delegate to a hearing examiner the authority to
6 render a final adjudication or decision in such cases as deemed
7 appropriate.
8 Section 4. Additional powers for Commissioner of Professional
9 and Occupational Affairs.
10 In addition to the powers and duties imposed under law, the
11 Commissioner of Professional and Occupational Affairs, or his
12 designee, shall be a member of each of the licensing boards and
13 commissions except the State Board of Certified Real Estate
14 Appraisers and the Navigation Commission for the Delaware River
15 and its Navigable Tributaries. The Commissioner of Professional
16 and Occupational Affairs, or his designee, may serve as the
17 designee of the Secretary of the Commonwealth on the Navigation
18 Commission for the Delaware River and its Navigable Tributaries.
19 Section 5. Civil penalties.
20 (a) Authorization.--The Commissioner of Professional and
21 Occupational Affairs, after consultation with the licensing
22 boards and commissions, shall have the power to adopt a schedule
23 of civil penalties for operating without a current, registered,
24 unsuspended and unrevoked license, registration, certificate or
25 permit and for violating any provision of their respective acts
26 or regulations relating to the conduct or operation of a
27 business or facility licensed by such licensing boards and
28 commissions. THE SCHEDULE OF PENALTIES SHALL NOT BE APPLICABLE <--
29 TO DISCIPLINARY MATTERS UNDER THE JURISDICTION OF A LICENSING
30 BOARD OR COMMISSION UNLESS THAT LICENSING BOARD OR COMMISSION
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1 HAS APPROVED THE SCHEDULE. The schedule of penalties, guidelines
2 for their imposition and procedures for appeal shall be
3 published in the Pennsylvania Bulletin, provided that the
4 commissioner shall, within two years of such publication,
5 promulgate a regulation setting forth the schedule of penalties,
6 guidelines and procedures. Any such penalty shall not exceed the
7 sum of $500 $1,000. Duly authorized agents of the bureau shall <--
8 have the power and authority to issue citations and impose
9 penalties for any such violations. Any such penalty imposed may
10 be appealed to a hearing examiner or the licensing board or
11 commission pursuant to the regulations promulgated under section
12 3(b). If the appeal is initially to a hearing examiner, the
13 relevant licensing board or commission shall render a decision
14 on any exceptions to the decision of the hearing examiner or on
15 any applications for review in accordance with section 3(d). All
16 proceedings shall be conducted in accordance with the provisions
17 of 2 Pa.C.S. (relating to administrative law and procedure). If <--
18 a penalty is imposed under this subsection, no additional civil
19 penalty may be imposed for the same act.
20 (b) Additional powers.--In addition to the disciplinary
21 powers and duties of the boards and commissions within the
22 Bureau of Professional and Occupational Affairs under their
23 respective practice acts, boards and commissions shall have the
24 power, respectively:
25 (1) To impose discipline on any licensee, registrant,
26 certificate holder or permit holder who violates a lawful
27 disciplinary order of the board.
28 (2) To impose discipline on any licensee, registrant,
29 certificate holder or permit holder who aids and abets the
30 unlicensed practice of a profession, occupation or business.
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1 (3) To levy a civil penalty of not more than $1,000 on
2 any corporation, partnership, institution or, association OR <--
3 SOLE PROPRIETORSHIP, which aids and abets any individual in
4 the unlicensed practice of a profession. This penalty shall
5 not, however, be levied against any person solely as a
6 consequence of that person being a patient or client of the
7 unlicensed individual.
8 (C) RESTRICTIONS.--ANY DECISIONS RENDERED BY A LICENSING <--
9 BOARD OR COMMISSION ON ANY EXCEPTIONS TO THE DECISION OF A
10 HEARING EXAMINER OR ON ANY APPLICATION FOR REVIEW IN ACCORDANCE
11 WITH SECTION 3(D) TO IMPOSE A CIVIL PENALTY PURSUANT TO THIS
12 SECTION SHALL REQUIRE THE SAME NUMBER OF VOTES REQUIRED FOR THE
13 LICENSING BOARD OR COMMISSION TO IMPOSE A CIVIL PENALTY UNDER
14 ANY OTHER ACT. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO
15 RESTRICT THE POWERS AND DUTIES UNDER ANY OTHER ACT OF A
16 LICENSING BOARD OR COMMISSION IN DISCIPLINARY MATTERS, EXCEPT
17 THAT A LICENSING BOARD OR COMMISSION MAY NOT IMPOSE A CIVIL
18 PENALTY UNDER ANY OTHER ACT FOR THE SAME VIOLATION FOR WHICH A
19 CIVIL PENALTY HAS BEEN IMPOSED PURSUANT TO THIS SECTION.
20 (c) (D) Status of civil penalty.--Any civil penalty imposed <--
21 pursuant to this section or imposed by any licensing board or
22 commission under any other act shall be a judgment in favor of
23 the Bureau of Professional and Occupational Affairs upon the
24 person or the property of the person upon whom the civil penalty
25 is imposed. The Attorney General shall be responsible for
26 enforcing such judgments in courts of competent jurisdiction in
27 accordance with the provisions of 42 Pa.C.S. (relating to
28 judiciary and judicial procedure).
29 (d) (E) Definition.--As used in this section, the term <--
30 "unlicensed practice" means:
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1 (1) practicing a profession or occupation or operating a
2 business for which a license, registration, certificate or
3 permit is required without holding a valid, unexpired,
4 unrevoked or unsuspended authority to do so; or
5 (2) representing to the public or any person, through
6 offerings, advertisements or the use of a title that the
7 individual is qualified to practice a profession, occupation
8 or business for which a license, registration, certificate or
9 permit is required without holding a valid, unexpired,
10 unrevoked or unsuspended authority to do so.
11 Section 6. Suspensions. <--
12 (a) Automatic suspension.--A license, registration,
13 certificate or permit of a person shall automatically be
14 suspended upon imprisonment because of conviction under Federal
15 or State law or the laws of any other state of insurance fraud
16 or Medicaid or Medicare fraud, such suspension to be concurrent
17 with the period during which such person is imprisoned because
18 of the conviction.
19 (b) Required proceedings.--An immediate investigation shall
20 be initiated to determine if the license, registration,
21 certificate or permit of a person should be suspended as
22 follows:
23 (1) Upon denial of participation in the Medicaid or
24 Medicare program because of a violation of either program as
25 determined under Federal or State law or the laws of any
26 other state.
27 (2) Upon suspension or revocation by the United States
28 or any other state of a license, registration, certificate or
29 permit to practice in the United States or other state.
30 (c) Longer suspensions.--Nothing in this section shall be
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1 construed to prohibit a licensing board or commission from
2 imposing a longer suspension than prescribed by subsection (a),
3 provided that the board or commission shall impose a longer
4 suspension only after notice and an opportunity to be heard and
5 that the automatic suspension shall not be stayed pending a
6 decision by the board or commission on whether to impose a
7 longer suspension.
8 (d) Definition.--As used in this section, the term
9 "conviction" shall include a finding or an admission of guilt, a
10 plea of nolo contendere, probation without verdict, Accelerated
11 Rehabilitative Disposition or disposition in lieu of trial.
12 Section 7 6. Reports. <--
13 Licensing boards and commissions shall submit annually to the
14 Consumer Protection and Professional Licensure Committee of the
15 Senate and to the Professional Licensure Committee of the House
16 of Representatives a report containing the following:
17 (1) Description of the types of complaints received.
18 (2) Status of cases.
19 (3) Total number of cases and type of disciplinary
20 action taken.
21 (4) Percentage of disciplinary actions in relation to
22 the total number of licensees.
23 (5) Number of closed cases.
24 (6) Average number of days to close a case.
25 (7) Number of revocations and suspensions.
26 (8) Percentage of revocations and suspensions in
27 relation to the total number of licensees.
28 Section 8 7. Repeals. <--
29 All acts or parts of acts are repealed insofar as they are
30 inconsistent with the provisions of this act.
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1 Section 9 8. Applicability. <--
2 Section 5 of this act shall apply only to disciplinary
3 proceedings commenced on or after the effective date of this
4 act.
5 Section 10 9. Effective date. <--
6 This act shall take effect in 60 days.
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